European Commission vice-president suggests excluding investment provisions from future trade agreements

Jyrki Katainen

Agence France-Presse reports, "The European Union could exclude investments from its future trade agreements, including the one with Japan, which would facilitate their negotiation and ratification, said Commission Vice-President Jyrki Katainen on [July 10]."

That article adds, "European justice has recently found that virtually all the issues negotiated in a trade agreement fall within the sole competence of the European Union, with the exception of investments, which are also within the competence of the Member States. If investments were excluded from trade agreements negotiated by the Commission on behalf of the Member States, this would allow it - on paper - to conclude them alone, without being obliged to ratify them in each country, which takes years."

Another Agence France-Presse article notes, "The issue became even more pressing after the EU’s highest in court in May said trade deals that included investment would require ratification by all the EU’s national parliaments, instead of far less risky fast-track approval by the national governments."

Katainen says, "Let’s keep free trade agreements as they are … and then investment-related issues could be seen, or must be seen … separate from trade deals."

As such, the implication is that Katainen may mean both a 'foreign investment promotion and protection agreement' along with a comprehensive trade deal (which still contain numerous harmful provisions).

It does not appear that Katainen is opposed to the investment court system (ICS).

The article explains, "Japan and the EU are still very far apart on investment and so-called investment courts... This mechanism has come under furious opposition in Europe and the EU is trying — so far unsuccessfully — to persuade international partners to adopt a new system staffed by public as opposed to private sector officials. A publicly run system as desired by Brussels 'will take some time' even if it is the 'good sustainable solution', Katainen said. But Japan insists on sticking to the old system, which is a deal-breaker for the Europeans."

Unfortunately, there is also no indication that Katainen is suggesting that the controversial investment provisions be dropped from the Canada-European Union Comprehensive Economic and Trade Agreement (CETA).

The Council of Canadians has been clear in its opposition to the ICS provision now incorporated into CETA.

Maude Barlow says, "ICS fails to require foreign investors – like everyone else, including domestic investors – to go to a country's domestic courts before seeking an international remedy. The proposed investment court system still gives a special status to foreign corporations by allowing them to challenge the laws that apply to everyone else through a special system outside established court systems."

Furthermore, the report Investment Court System put to the test published by the Canadian Centre for Policy Alternatives, Corporate Europe Observatory, Friends of the Earth Europe, Forum Umwelt und Entwicklung, and the Transnational Institute found that ICS reform in CETA would still allow the most controversial ISDS challenges launched under the North American Free Trade Agreement (NAFTA) to proceed.

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